Scott v. Day & Zimmerman, Inc.

• Decision Date: 01 March 1975
• Docket Number: No. 47568,47568
• Parties: George SCOTT, Appellee, v. DAY AND ZIMMERMAN, INC., and Liberty Mutual Insurance Company, Appellants.
• Court: Kansas Supreme Court

Page 1111

532 P.2d 1111

216 Kan. 458

George SCOTT, Appellee, v. DAY AND ZIMMERMAN, INC., and Liberty Mutual Insurance Company, Appellants.

No. 47568.

Supreme Court of Kansas.

March 1, 1975.

Syllabus by the Court

The record in an action pursuant to K.S.A. 44-512a is examined and, as set forth in the opinion, it is held: The trial court sufficiently stated the legal principles controlling its decision as required by rule 116 and did not err in sustaining claimant's motion for summary judgment for the entire amount of compensation awarded.

Randall D. Palmer, Keller, Wilbert, Palmer & Lassman, Pittsburg, argued the cause and was on the brief, for appellants.

Morris D. Hildreth, Becker, Hildreth & Eastman, Coffeyville, argued the cause and was on the brief, for appellee.

HARMAN, Commissioner:

This is an appeal from summary judgment in favor of the claimant in a workmen's compensation proceeding for a lump sum award under K.S.A. 44-512a.

On July 24, 1973, the trial court, upon appeal from a limited award of compensation entered by the director of compensation, found that appellee George Scott was totally and permanently disabled as a result of accidental injury arising out of and in the course of his employment with Day and Zimmerman, Inc., and it awarded compensation to Scott accordingly. Upon appeal by the employer and its insurance carrier to this court the judgment was affirmed (Scott v. Day and Zimmerman, Inc., 215 Kan. 782, 529 P.2d 679).

The facts pertinent to this appeal are undisputed. On August 16, 1973, there was due appellee from appellants under the foregoing judgment unpaid compensation in the amount of $5,489.00. Request by appellee for this amount was duly made by written demand served upon appellants August 17, 1973. The twenty day period provided by K.S.A. 44-512a for payment of the delinquent amount expired Thursday, September 6, 1973. Payment was not made within this period and appellee filed his petition for the total award Friday, September 7, 1973. The current amount due in weekly payments under the demand was tendered by appellants on Monday, September 10, 1973, but was declined by appellee.

In their answer to appellee's 512a petition appellants explained their failure to pay appellee the sum due during the twenty day period: Shortly after the written demand was served Day and Zimmerman's insurance carrier, appellant Liberty Mutual Insurance Company, forwarded to appellants' then counsel certain drafts for delivery to appellee (present counsel for appellants entered the litigation in Scott v. Day and Zimmerman, Inc., supra, only after judgment was rendered and notice of appeal was filed in this 512a case); upon receipt of such drafts appellants' attorneys determined they were not drawn for the proper amount due; by telephone appellants' attorneys requested confirmation from appellee's lawyers of the proper amount but this confirmation was refused until after the drafts were delivered; on August 28 and 29, 1973, additional drafts were sent by Liberty Mutual to appellants' attorneys for delivery to appellee; these drafts were received by appellants' attorneys August 29 and 30, 1973, but were 'inadvertently placed in the file concerning said case in the office of defendant's attorneys and were not tendered to plaintiff's attorney until September 10, 1973. . . .'

Appellants' first point on appeal is that the judgment of the trial court is void because the court did not, either orally or in writing, state the controlling facts upon which appellee's motion for summary judgment was decided, contrary to K.S.A. 60-252(a) and rule 116 of this court (214 Kan. xxxvii). By its own terms 60-252(a) exempts summary judgment from its requirement that the trial judge state the controlling facts, this, of course, for the reason rendition of summary judgment is improper if the controlling facts are in dispute (it has been said that findings may well be helpful in making clear the basis for the trial court's decision and in indicating what that court understood to be the undisputed facts on which summary judgment was granted (9 Wright & Miller, Federal Practice and Procedure: Civil § 2575, pp. 692-693)).

Rule 116 is broader than 60-252(a) in that it requires that in all contested matters submitted to a judge without a jury, the judge shall, in addition to stating the controlling facts required by 60-252, briefly state the legal principles controlling the decision (see Duffin v. Patrick, 212 Kan. 772, 512 P.2d 442). In the case at bar the only judgment made by the trial judge consisted of the following entry in his minutes:

'1-2-74 The Court having received the briefs of the parties, reviewed the record and authorities, and being fully advised, finds that 'if compensation awarded is not paid whan due, and service of written demand for payment has been made on the employer and its attorney of record, and said demand for payment . . . not made within 20 days from the date of service of the demand, the entire amount awarded shall become immediately due and payable.' The motion for summary judgment is sustained.'

The last sentence above was recorded on the appearance docket and the amount of the total lump sum due appellee from appellants was entered in the judgment docket with the proper date and names of the parties. Appellants assert the court violated both the statute and the rule but they make no statement or showing they were left in the dark as to why the court ruled as it did.

If our record on appeal is correct part of the court's statement was somewhat garbled-obviously what was meant within the court's quotation marks was the provision of K.S.A. 44-512a that where 'payment of said demand is thereafter . . . not made wtihin twenty (20) days from the date of service of said demand . . . the entire amount of compensation awarded . . . shall become immediately due and payable'. In effect the trial court was saying, 'The statute fits-it is applied'. We think the notation constituted substantial compliance with the rule-in any event our review is not inhibited by lack of a more comprehensive statement so no prejudice results.

Appellants' other contention is that the trial court erred in holding K.S.A. 44-512a applicable in the light of the factual allegations contained in their answer. Essentially they say there was no deliberate refusal or failure to pay within the twenty day period, rather the failure was the result of an inadvertent mistake and it is inequitable and unfair to apply 512a.

K.S.A. 44-512a (since amended) provided:

'That if any compensation awarded, agreed upon or adjudged under the provisions of the workmen's compensation act of this state or any installment thereof shall not be paid to the employee or other person entitled thereto when due, and service of written demand for payment has been made personally or by registered mail on the person, firm or corporation liable to pay the same and on the attorney of record of such person, firm or corporation, payment of said demand is thereafter either refused or not made within twenty (20) days...